In 1828, gold was found in the Appalacian Mountains of Georgia on land that belonged to the Cherokee Nation. As word of the gold spread, miners and settlers pushed into the area. The State of Georgia wanted to regulate, permit and benefit from the commerce, but the land belonged to the Cherokee under treaty with the federal government. As the state and miners continued to encroach, the Cherokee Nation refused to cede more land and sought an injunction that eventually reached the Supreme Court.
In 1832, Chief Justice John Marshall infuriated sitting president Andrew Jackson by declaring that the State of Georgia had no right to encroach on Cherokee lands, because the land belonged to the Cherokee under the terms of a federal treaty. Ignoring the Supreme Court’s ruling, a furious President Jackson famously responded: “John Marshall has made his decision, now let him enforce it.”
President Jackson, a champion of slavery and states’ rights, ignored the Supreme Court’s ruling, and instead endorsed the Trail of Tears, a forced march to Oklahoma during which thousands of Cherokee starved and froze to death. It was among the most shameful episodes of ethnic genocide in American history.
In 2021, two years before he became a US Senator, Vice President JD Vance embraced the spirit of Andrew Jackson. Vance said that when Trump returned to office, he should “Fire every single… civil servant… (and) replace them with our people. When the courts stop you, stand before the country like Andrew Jackson did and say: The chief justice has made his ruling. Now let him enforce it.”
JD Vance is protecting Trump’s attacks against the federal government
His election as Vice President has not tempered Vance’s lust for power; if anything, it’s become worse. The Trump administration is closing entire federal agencies without understanding what services they provide or how they operate. Tech bros like to move fast and break things, but that’s not how government works, nor should it.
The federal government exists to serve the American people, not to turn a profit. When agencies are shuttered, Trump/Musk/Vance can brag on State TV about billions in “immediate savings,” but they have no idea what the downstream costs will be. How will closing USAID increase starvation and, thereby, radicalization and migration that will eventually visit our shores? When NIH research is shuttered, what will the resurgence of AIDs, polio, or epidemic variants cost in terms of human suffering and commerce? When FEMA or the National Oceanic and Atmospheric Administration is closed, who will forecast deadly weather events and who will help the stricken people?
These are questions outside the bandwidth of an impatient Ketamine addict and a low-impulse control President. Vance, in contrast, possesses the intellectual capacity but is using it to weild unchecked authority and upend the balance of power.
Vance goads federal judges
After illegally firing federal employees based on political purity tests, including FBI agents, inspectors general, DOJ lawyers and commissioners, then giving Musk’s teenagers access to federal payment systems, Trump issued a spending freeze to retroactively suspend Congressionally created programs. A federal judge issued a temporary restraining order against the freeze, which Trump loyalists both disregarded and attacked.
Last week, Vance blasted the judiciary writ large and suggested judges lack jurisdiction over Trump's ‘legitimate power,’ clearly gaslighting the right into believing that Trump’s actions are “legitimate.” Vance went even further, offering these examples:
“If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.”
Vance, who attended Yale Law School and presumably took ConLaw 101, knows better. Using Vance’s examples, if Trump orders the military to shoot peaceful American protesters in the head, something Trump’s falling down drunk Secretary of Defense would likely relish, Vance says the Courts are powerless to stop him. If the attorney general decided to imprison every Democrat in the nation, something Kash-enemies-list-Patel would enjoy, Vance says again that there’s nothing the courts can do.
Vance is wrong, and he knows he’s wrong.
JD Vance deliberately skews the separation of powers
Contrary to Vance’s claim, centuries of court cases establish the role of the courts in checking overreach by the executive branch. In 1952, inYoungstown Sheet & Tubing Company v. Sawyer, President Truman issuedan executive orderdirecting the Secretary of Commerce to take control of the nation's steel mills to avoid an expected United Steelworkers strike. The consequences to the nation’s economy promised to be devastating, so the federal government had a demonstrated, vital interest in blocking the strike. In a 6-3 ruling, however, the Supreme Court ruled held that a president lacks that authority, clarifying that “the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
Trump/Musk/Vance, by the wholesale elimination of federal agencies created by Congress, are trying to be lawmakers. Vance, claiming the courts can’t stop them, is trying also to usurp the role of the Judiciary.
The Chief Justice has clearly heard Vance denounce the court’s authority. In his traditional, year-end reporton the federal judiciary, Roberts remarked that judicial independence “is undermined unless the other branches [of government] are firm in their responsibility to enforce the court’s decrees… Within the past few years … elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
Courts are pushing back against Trump/Musk/Vance’s lawlessness
Last week, Reagan-appointed U.S. District Judge John Coughenour issued a stark warning of his own, accusing Trump of trampling on the Constitution for personal gain. “It has become ever more apparent that, to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”
In a separate case demonstrating Trump’s defiance of a judicial order, plaintiffs alerted a federal court that Musk is still putting employees of the U.S. Agency for International Development (USAID) on administrative leave, despite the judicial Order instructing the opposite.
As Trump/Musk/Vance fight to cancel money that has already been legislated by Congress to pay for essential services including Medicaid, school lunches, and low-income housing subsidies, the courts will block them. Fourteen states have already challenged Trump’s unchecked power. Whether Trump follows the ultimate rulings, or follows Vance and Andrew Jackson’s advice to ignore them, will determine whether we still have a functioning democracy.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, the Haake Take, is free.